Tucker v. Shaw

• Decision Date: 16 October 1895
• Parties: TUCKER v. SHAW.
• Court: Illinois Supreme Court

158 Ill. 326

41 N.E. 914

TUCKER

v.SHAW.¹

Supreme Court of Illinois.

Oct. 16, 1895.

Appeal from circuit court, Wayne county; S. Z. Landes, Judge.

Ejectment by Oliver Tucker against Thomas Shaw. Defendant obtained judgment. Plaintiff appeals. Affirmed.

H. Tompkins and Geo. M. Norris, for appellant.

R. P. Hanna, for appellee.

CARTER, J.

This was an action of ejectment, by Oliver Tucker against Thomas Shaw, for the recovery of the S. E. 1/4 of the S. W. 1/4 of section 28, township 1 S., range 9 E. of the third P. M., in Wayne county. The land is what is generally denominated ‘swamp lands,’ and both parties claim title through Wayne county as a common source. The cause was tried by the court, without a jury, who found the defendant not guilty, and rendered judgment accordingly, from which judgment the plaintiff took this appeal.

It is admitted that the records of the county were destroyed by fire November 30, 1886. Appellant claims to have paramount title to the land in question by virtue of a deed from Wayne county to Illinois Southeastern Railroad Company, dated October 13, 1868, properly describing this tract, with other lands, and reciting that it conveyed about 45,000 acres of swamp land as a consideration for the building of the company's railroad through said county, and, by mesne conveyances, to the appellant. This deed to the railroad company was recorded June 15, 1871. Appellant claims that the railroad company took possession May 1, 1870, of the lands conveyed, and that the taxes on the land in dispute have been paid by appellant for 14 consecutive years prior to the commencement of the action. Appellee claims title by mesne conveyances through S. J. R. Wilson, who, it is claimed, obtained a deed as for swamp lands for the whole S. W. 1/4 of section 28 from Wayne county, by J. W. Barnhill, county clerk, in the spring of 1865, and by possession adverse to appellant for more than 20 years prior to the commencement of this suit. Appellant denies that Wilson ever obtained a deed from the county for the land, and denies also that the evidence sufficiently establishes such adverse possession in appellee and his grantor, and for the length of time as required by the statute to constitute a bar to the action.

The deposition of S. J. R. Wilson was taken by defendant, and the substance of his testimony was that one Vincent Shelton had made improvements on the land, by way of building a dwelling, and fencing and clearing about 15 acres, as early as 1859; that Shelton lived on the land until in February, 1865, when he (Wilson) bought from Shelton the improvements and his pre-emption claim, and thereupon took possession of the land,-that is, the said S. W. 1/4 of section 28; that either during the same month, or in March following, he bought the land from the county as swamp land, and obtained a deed therefor from the county clerk, and filed it immediately for record with the recorder of deeds of Wayne county; that he never called for or obtained the deed thereafter, and did not know what became of it, but supposed it was destroyed by fire on November 30, 1886, when the records of the county were all burned up. It was admitted on the trial that the county records were so destroyed at that time, and it appeared from the evidence that no such deed or record thereof could be found. Wilson also testified that he was mustered out of the army December 29, 1864, and that he remembered that the purchase of the improvements and land was made in February or March following; that R. P. Hanna acted as his attorney in proving up the pre-emption and obtaining his deed for the land from the county clerk; that he continued in possession of the land, by cutting and selling timber from it, until 1877, when he sold to others, and had paid taxes four or five years, and afterwards heard that the railroad company was paying taxes on it; had paid before he could see the collector, but did not know that any one but himself claimed to own or be in possession; that he did not think the county would sell the land twice. Ritter Wilson, his wife, gave testimony corroborating him as to the purchase from Shelton, cutting and selling timber from the lands, and said they had some deeds in the recorder's office at the time of the fire. Other witnesses corroborated Wilson as to possession and improvements of Shelton, and as to cutting and selling timber from the land, and other acts indicating possession in Wilson soon after 1865; and that Wilson claimed to own the land by deed from the county. J. A. Paul testified that, shortly after the war, he went to Fairfield with Wilson, and that Wilson employed R. P. Hanna as his attorney to prove up his pre-emption on the Shelton land, and that Wilson and Hanna went together into the clerk's office; that Wilson took possession of the land, and exercised acts of ownership over it. R. P. Hanna testified that in 1865, as late as April or May, he was employed as an attorney by Wilson, to prove up pre-emption and procure a deed to 160 acres of swamp land; that Shelton had made the improvement, and Wilson had bought it. He said: ‘We established the improvement and the pre-emption, and S. J. R. Wilson received a deed for the 160 acres of land. Jefferson Barnhill, county clerk, executed to Wilson a deed to the land Shelton claimed an improvement on. I do not know the numbers of the land, or what Wilson did with the deed. * * * I was of the opinion that, under the swamp-land laws of 1852 and 1854, the county could not sell and convey swamp land where there was an improvement on the same, except to the owner of the improvement. Hence, I advised Wilson to establish the improvement and take Shelton's pre-emption.’ While this witness testified that he did not recollect that he saw the deed executed and...